Macanovic v. Toronto Public Library, 2014 HRTO 1592

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jemila Macanovic

Applicant

-and-

Toronto Public Library

Respondent

RECONSIDERATION DECISION

Adjudicator: Jennifer Scott

Date: October 29, 2014

Citation: 2014 HRTO 1592

Indexed as: Macanovic v. Toronto Public Library

WRITTEN SUBMISSIONS

Jemila Macanovic, Applicant

Self-represented

Introduction

1This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to services because of disability.

2By Case Assessment Direction dated October 8, 2013, the Tribunal directed that a summary hearing be held to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed. The Case Assessment Direction alerted the applicant to the fact that it appeared that she would be unable to establish a link between the respondent’s alleged actions and a Code ground, and affirmed the Tribunal does not have the general power to deal with allegations of unfairness.

3By decision dated June 4, 2014, 2014 HRTO 794 (the “Decision”), the Tribunal dismissed the Application because it had no reasonable prospect of success.

4On June 6, 2014, the applicant filed a Request for Reconsideration where she submitted the Decision was in conflict with established case law and/or it was without foundation because of a misapprehension of evidence or a lack of evidence to support its findings.

test for reconsideration

5Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

6The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers. Rule 26 of the Tribunal’s Rules of Procedure states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within 30 days from the date of the decision.

26.5 A Request for Reconsideration will not be granted unless the Tribunal is satisfied that

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

7The Tribunal’s Practice Direction on Reconsideration states Reconsideration is a discretionary remedy: that there is no right to have a decision reconsidered by the Tribunal. It affirms that Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case. The Practice Direction gives examples of situations where the Tribunal has refused Requests for Reconsideration, including where a party repeats arguments that were made at a hearing or raises new arguments that were not made, but could have been made, at the hearing.

decision

8The Request for Reconsideration repeats many of the same arguments that were made in writing before the summary hearing and during the summary hearing. The applicant has made additional arguments in her Request for Reconsideration that were not made at the summary hearing, but could have been made. As is clear from the Tribunal’s Practice Direction on Reconsideration, reconsideration cannot be used to repeat arguments or make new arguments that were not made during the hearing. It is on this basis that the Reconsideration is denied. That said, I will briefly address the applicant’s arguments in the Request for Reconsideration.

9In the Decision, I held the allegations in the Application concerned the alleged threat by library staff to remove her and two other patrons from the library on June 12, 2012. I found the applicant did not disclose her mental health disability with library staff on this day. The applicant admitted this during the summary hearing. In the absence of the applicant disclosing her disability, there was no obligation on the part of the library staff to consider the applicant’s disability in its treatment of her. In particular, there was no requirement to consider the impact of the conduct of the other patron (who also had mental health issues) on the applicant and no duty to accommodate the applicant.

10If the library did not know about the applicant’s disability during the incident on June 12, 2012, the applicant is unable to link the adverse treatment (the threat to remove the applicant from the library) with a Code ground. In the Decision, I found the applicant was complaining about unfair treatment: the threat to remove her when it was the other patron who was being disruptive. I reaffirmed the Tribunal has no jurisdiction over unfair treatment.

11In the Request for Reconsideration, the applicant argues my finding is inconsistent with Tribunal jurisprudence concerning the duty to accommodate. The duty to accommodate comes into play when disability is raised. In this case, the applicant did not raise her disability or request accommodation on June 12, 2012. Therefore, there was no duty to accommodate on that day.

12In the Decision, I acknowledged the applicant raised her disability in subsequent correspondence on June 28, 2012, where she complained the library failed to inquire how it could accommodate the applicant knowing she has an anxiety disorder. I held the fact that the applicant raised this issue on June 28, 2012, did not mean the library had knowledge on June 12, 2012. Again, if the library did not know about the applicant’s disability on June 12, 2012, it had no duty to accommodate.

13The applicant, in her Request for Reconsideration, argues the library had a procedural and substantive duty to inquire into how it could accommodate her disability upon being advised of its existence on June 28, 2012. The raising of her disability on June 28, 2012, created a duty to accommodate (consider the impact of the behaviour of other patrons on the applicant) from that date forward. It did not retrospectively create that duty on June 12, 2012. There are no allegations in the Application that the library failed to accommodate the applicant after being informed of her disability on June 28, 2012. In particular, there are no allegations that the applicant, as a person with a mental health disability, has been adversely impacted by the behaviours of others in the library after the library became aware of her disability.

14The applicant argues further that the library failed in its duty to investigate. Assuming for the purposes of this decision that there is a free-standing duty to investigate, the applicant did not make a human rights complaint on June 12, 2012. She made a complaint of unfair treatment. There is no duty to investigate a complaint of unfairness.

15As its core, this Application is about an incident on June 12, 2012, regarding the disruptive behaviour of a patron with mental health issues. The applicant and another patron complained about the disruptive behaviour. The applicant did NOT complain the behaviour was adversely impacting her because of her disability. The applicant suggests the library staff person prevented her from complaining. I rejected this argument in the Decision because the applicant spoke to the branch manager on June 12, 2012 (after the incident) to give advice on the appropriate accommodation process for the disruptive patron.

16The legal principles and case law regarding the duty to accommodate and the duty to investigate do not apply to the incident of June 12, 2012, which is the subject-matter of the Application, because the applicant did not raise her disability. In the absence of raising her disability, there is no human rights issue. The applicant cannot use her correspondence of June 28, 2012 to change the very nature of the June 12, 2012 incident.

17The Request for Reconsideration is essentially an attempt by the applicant to re-argue matters that were already presented or argued at the hearing or to appeal the Decision. In my view, the applicant has provided no reason to reconsider the Decision. There are no compelling and extraordinary circumstances that outweigh the public interest in finality of decisions. The Request for Reconsideration is denied on that basis.

ORDER

18The Request for Reconsideration is dismissed.